Bigelow v. Kinney

Prentiss, Ch. J., delivered the opinion of the Court. — That the deed of an infant, which takes effect by delivery, and is not upon the face of it a prejudice to him, is not void, but voidable only, is a doctrine well established by the authorities, and particularly by the case o f Zouch vs. Parsons, 3 Burr. 1794. The principle settled in that case has been confirmed by subsequent decisions in England, and has been generally, if not universally, re-cognised and adopted by the courts in this county. It is not only highly reasonable, but more beneficial to the infant, that it should be so ; for if the contract is void, it has no effect upon either party, and the infant himself can take no advantage of it. But if it be voidable only, he may either affirm or disaffirm it, after he arrives at full age, and is thus enabled to avail himself of the contract when it is beneficial, and to avoid it when it is prejudicial to his interest. In the present case, the plaintiff after he came to maturity had his election either to affirm or disaffirm the contract. If he disaffirmed it, he might have brought his action, and recovered hack the money he had advanced on the purchase. If he affirmed it, his only remedy was by an action on the promise of Williams to pay him the sum of ‡ 100 whenever he sold the land. As the execution of the deed of quit-claim, however, was a transaction subsequent in point of’time to the execution of the original deed and mortgage, and formed a distinct contract, the plaintiff might have elected to avoid the quit-claim deed only, leaving the original deed and mortgage in force.^But he could not affirm the deed which conveyed the land to him, and avoid the mortgage executed by him to secure the consideration money. The d^ed and mortgage were made at the same time, were one transaction, and though distinct instruments,formed one entire contract, which could not be affirmed in part, but must be affirmed or disaffirmed in whole. Nothing is clearer, than that a party cannot affirm an entire contract in part and avoid it in part; and to allow the plaintiff to avail himself of the deed conveying the land to him, and to avoid the mortgage given by him to secure the purchase money, would be no less repugnant to law than to the plainest dictates of justice.J^If the plaintiff, therefore, had elected, or was now at liberty, to avoid the deed of quit-claim, and take the benefit of the prior deed to himself, the mortgage given by him to secure the purchase money would be binding upon him ; and as the notes were given up in consideration of the quit-claim deed, and without payment, the debt would remain, and the plaintiff would have nothing but an equity of redemption in the land. As an equity of redemption, after a breach of the condition of [359] leed is rnBBRj the deed isüHBPnfficient title on which to recover in ejectment, against the mortgagee, or any one holding under him,the view already taken of the case is decisive against the plaintiff. But we also think, that, on the evidence stated in the exceptions, the deed of quit-claim was ratified and confirmed, so that even the plaintiffs equity of redemption was released and gone. Though it is laid* down, that a bare acknowledgement or recognition of the con-* tract of an infant, after he comes of age, without an express promise, will not, where the contract is for the payment of money, or the performance of some personal duty, and remains executory, amount to a ratification ; yet in general, an express act done under a contract of his infancy, implying a confirmation of it, has been held to be sufficient. There are numerous instances in the books, in which an affirmation of a contract, connected with, or growing out of an interest in, lands, has been inferred from acts or circumstances ; as where an infant, after full age, continues in possession of lands purchased, taken in exchange, or leased, or receives or pays rent. Indeed, it is held in a late case, that in every instance where the contract is voidable only by the infant on his coming of age, he is bound by, and is presumed to ratify, the contract, if he does not within a reasonable time after he has attained full age,give notice of disaffirmance,or otherwise reject the contract. — (Holmes vs. Blogg, 8 Taunt. 35.) This principle is applicable of course to all grants or conveyances pf real property to or from the infant; and we do not see why it should not apply to all contracts executed and performed by him during his infancy. A deed executed and delivered by an infant, conveying land, remains good and valid, until it is avoided by him ; and as he alone has the power of avoiding the deed and rescinding the contract, he is bound, in reason and justice, after he comes of age, and is competent to exercise a discretion upon the subject, to make his election, and give notice of his intention. He ought not to be allowed to leave the grantee, upon whom the contract is binding, in a state of suspense and uncertainty ; and unless he makes known his determination in a reasonable time, it is just that the contract should become absolute against him. At any rate,silence on his part, while the grantee, or any one under him, is claiming,, holding, and occupying under the contract, is an acquiescence from which a confirmation of the contract may be inferred. It was decided in the case of Kline vs. Beebe, 6 Con. Rep. 494, that the grant of an infant may be affirmed either by the performance of acts from which an affirmance may be reasonably implied, [360] iraBBmne; and ac- or by the omission to disaffirm within a reaso: cordingly, where an infant, after attaining full age, retained the notes given for the purchase of land, and the grantee was permitted to remain in the undisturbed possession of the land for a number of years, it was held, not only that these acts implied an affirmance of the deed, but that the omission of any act or’ expression of disaffirmance alone, for such a length of time, was an acquiescence in the conveyance, amounting to a tacit affirmance. In a recent work of great excellence and value, the production of an accomplished and experienced jurist, justly distinguished for sound discriminating judgement, and surpassed by none in extensive and accurate erudition, it is laid down, that the confirmation of the act or deed of an infant may be justly inferred against him, after he has been of age a reasonable time, either from his positive acts in favor of the contract, or from his tacit assent under circumstances not to excuse his silence.—(2 Kent's Com. 195.) In the present case, nine years elapsed after the plaintiff came of age, before he intimated any intention or wish to disaffirm the contract; during all which time Williams, or others holding under him, remained in possession ofthe land. In addition to this, the plaintiff, nearly two years after he became of age, demanded of Williams the ‡ 100 promised him, and applied to purchase the land of Williams’grantee, and afterwards to hire it. These acts denoted an intention not to disaffirm the deed of quit-c]aim ; and either they, or the lapse of time, were sufficient evidence of a confirmation of the deed. Judgement reversed, and cause remanded to the’county court for a new trial.